Category:2009 cases
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| Page and summary | Date added to site | Categories |
|---|---|---|
| Gill v Woodall [2009] EWHC B34 (Ch) — "The Claimant disputes the validity of Mrs Gill's will on two grounds. They are: (1) At the time Mrs Gill executed the will she did not know and approve its contents; (2) Mrs Gill executed the will as a result of coercion or pressure exerted by Mr Gill such as to overcome Mrs Gill's volition with the consequence the will was not the result of the free volition of Mrs Gill." | 2018-10-23 | 2009 cases, Judgment available on Bailii, No summary, Testamentary capacity cases, Transcript |
| Re DU; A NHS Trust v DU [2009] EWHC 3504 (Fam) — It was in DU’s best interests to be permitted to return to Nigeria subject to the making of practicable arrangements. [Official summary available.] | 2011-07-31 | 2009 cases, Best interests, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Pages using DynamicPageList3 parser function, Transcript |
| R (Woods) v Rochdale MBC [2009] EWHC 323 (Admin) — Unsuccessful JR of alleged failure to comply with obligations under the NHS and Community Care Act 1990 to assess the claimant's needs and to provide the resources to meet those needs. | 2011-03-30 | 2009 cases, Community care, Judgment available on MHLO, Judgment missing from Bailii, No summary, Transcript |
| Re KM; NCC v KM (2009) COP 1145479102 — Consideration of the legal aid position in relation to deprivation of liberty reviews following final hearing. | 2011-01-24 | 2009 cases, Brief summary, Deprivation of liberty, Judgment available on MHLO, Neutral citation unknown or not applicable, Transcript |
| Re JG (Estate Planning for Adults who have lost Capacity) [2009] ScotSC 77 — Scottish case. | 2010-11-28 | 2009 cases, Judgment available on Bailii, No summary, Scottish cases, Transcript |
| Peters v East Midlands SHA [2009] EWCA Civ 145 — [Summary required.] | 2010-10-04 | 2009 cases, Judgment available on Bailii, No summary, Other capacity cases, Transcript |
| Breslin v McKenna (Omagh Bombing case) [2009] NIQB 50 — Omagh bombing civil judgment, including consideration of damages for psychiatric injury. | 2010-09-27 | 2009 cases, Judgment available on Bailii, Miscellaneous cases, No summary, Transcript |
| A Primary Care Trust v P [2009] EW Misc 10 (EWCOP) — (1) P lacked capacity to decide where and with whom he should reside. (2) The removal of P from AH's care at home, as a manifest breach of Article 8, could only be proportionate if the best interests of P compellingly required it. (3) It was in P's best interests to be moved to independent living accommodation. (4) There would be a deprivation of liberty due to (a) the degree of control to be exercised by staff, (b) the constraint on P leaving if he intends to return to AH, (c) the power to refuse a request from AH for P's return, (d) the restraints on contact, (e) the fairly high degree of supervision and control. (5) Directions were given in relation to the conduct of further court reviews. (6) Contact would be dealt with separately in an Order. | 2010-09-13 | 2009 cases, Best interests, Brief summary, Deprivation of liberty, Judgment available on Bailii, Transcript |
| SH v NB (Marriage: Consent) [2009] EWHC 3274 (Fam) — The marriage between a 27-year-old Pakistani man and a 16-year-old English girl would be valid only if both of the parties had, according to the law of their respective ante-nuptial domiciles, validly consented to marry the other: (1) under Pakistani law the marriage was invalid; (2) under English law, the court declared that the marriage was invalid because the girl's free will had been overborne as a result of the pressure exerted upon her; it was voidable but now too late to issue a decree of nullity. | 2010-07-23 | 2009 cases, Brief summary, Judgment available offline, Judgment missing from Bailii, No transcript, Other capacity cases |
| Re HM; PM v KH [2009] EWHC 2685 (Fam) — Best interests case. | 2010-07-19 | 2009 cases, Best interests, Judgment missing from Bailii, No summary, No transcript |
| Stojanovski v Former Yugoslav Republic of Macedonia 1431/03 [2009] ECHR 1615 — Breach of Article 5. | 2010-07-09 | 2009 cases, ECHR, ECHR deprivation of liberty cases, Judgment available on Bailii, No summary, Transcript |
| Re MP; LBH v GP (2009) FD08P01058 — (1) MP, who suffered from a learning disability and lacked capacity as to residence and contact, was removed from his mother's accommodation and conveyed by the police to a care home. On the facts, there was presently no deprivation of liberty and it was in MP's best interests to remain at the care home with the existing contact regime continuing. (2) Guidance was given, subsequently approved by the President of the Family Division and Court of Protection, for cases where a vulnerable or incapacited adult requires to be removed from premises with the help of the police. | 2010-05-13 | 2009 cases, Deprivation of liberty, Detailed summary, Judgment available on MHLO, Neutral citation unknown or not applicable, Transcript |
| City of Westminster v FS (2009) COP 11685959 — Successful appeal by Official Solicitor against rejection of application to instruct independent social worker. | 2010-05-11 | 2009 cases, Best interests, Brief summary, Judgment available on MHLO, Neutral citation unknown or not applicable, Pages using DynamicPageList3 parser function, Transcript |
| R (Boyejo) v Barnet LBC [2009] EWHC 3261 (Admin) — The council's decision to change the way it provided support services to those living in sheltered accommodation in its area by terminating contracts for on-site warden based services and developing a peripatetic support service with the retention of an alarm service to all residents in such accommodation breached the Disability Discrimination Act 1995. | 2010-04-11 | 2009 cases, Brief summary, Disability discrimination, Judgment available on Bailii, Transcript |
| Dorset CC v EH [2009] EWHC 784 (Fam) — The Official Solicitor's view and independent expert's opinion was that EH, an elderly lady with dementia, should be assisted to continue to live at home; notwithstanding this, the judge agreed with the local authority that it was in EH's best interests to be deprived of her liberty in residential accommodation for her own safety. | 2010-03-28 | 2009 cases, Brief summary, Deprivation of liberty, Judgment available on MHLO, Judgment missing from Bailii, Transcript |
| KH (Afghanistan) v SSHD [2009] EWCA Civ 1354 — Save in very exceptional cases, withdrawal of medical treatment as a result of ordering return of a failed asylum-seeker would not constitute a violation of Article 3. In order for a case to be "very exceptional" it would have to be exceptional inside the class of person with mental illness without family support: perhaps a very old or very young person would qualify but hardly an ordinary adult. The appellant's was not such a case. | 2010-03-26 | 2009 cases, Brief summary, Judgment available on Bailii, Repatriation cases, Transcript |
| R (Munday) v SSJ [2009] EWHC 3638 (Admin) — The MoJ's decision to recall the claimant, although contrary to the RMO's advice, was not Wednesbury unreasonable or otherwise flawed on conventional public law grounds: the disagreement was not on medical grounds but on whether, given the history of arson and recent disengagement, a mere allegation of and arrest for arson was sufficient justification for recall. | 2010-02-07 | 2009 cases, Brief summary, Judgment available offline, Judgment missing from Bailii, Ministry of Justice cases, No transcript |
| Re Bax (2009) COP 22/10/09 — The donor appointed A and B to act jointly, and then provided that "In the event A is unable or unwilling to act as my attorney then I appoint C." On the attorneys' application the court severed the appointment of C. Although a donor may appoint a substitute attorney, the appointment must not be incompatible with a joint appointment of the original attorneys. [OPG summary - EPA cases.] | 2010-01-20 | 2009 cases, Brief summary, EPA cases - substitute atorneys, Judgment does not exist, No transcript |
| Re Bullock (2009) COP 15/12/09 — The certificate providers did not tick the box to confirm that they had discussed the LPA with the donor and that the attorney was not present. The donor was in hospital and the certificate providers had discussed the LPA with the donor at his bedside, the attorney being present throughout. The Public Guardian refused registration on the ground that the instrument was not in prescribed form. The court, in the exercise of its discretion, declared under paragraph 3(2) of Schedule 1 of the MCA 2005 that the instrument, which was not in the prescribed form, should be treated as if it were. Registration was directed accordingly. [OPG summary.] | 2010-01-12 | 2009 cases, Brief summary, Judgment does not exist, LPA cases - formalities, No transcript |
| Re Helmsley (2009) COP 30/11/09 — The donor executed two instruments intended to be LPAs. In Part A of both instruments she omitted to tick the box to confirm that she gave her attorneys authority to act on her behalf in circumstances when she lacked capacity. The Public Guardian refused registration on the ground that the instruments were not in prescribed form. On the attorneys' application, the court exercised its discretion under paragraph 3(2) of Schedule 1 of the MCA 2005 and declared that the instruments, although not in prescribed form, were to be treated as if they were. Registration was directed accordingly. [OPG summary.] | 2010-01-12 | 2009 cases, Brief summary, Judgment does not exist, LPA cases - formalities, No transcript |
| Re Smith (2009) COP 7/12/09 — In Part C of the EPA the attorney had deleted the words "I also understand my limited power to use the donor's property to benefit persons other than the donor". On the attorney's application, the court was satisfied that the deletion was made in error, and directed that the instrument should be read as if the wording had not been deleted. [OPG summary - EPA case.] | 2010-01-12 | 2009 cases, Brief summary, EPA cases - formalities, Judgment does not exist, No transcript |
| R (Southall) v Dudley PCT [2009] EWHC 1780 (Admin) — The defendant elected to go to a more expensive home for a continuing care package than the one that the PCT offered. The PCT entered into a contract with the care home operator at the lower rate, which would have been appropriate for the other care home on the same overall site, and the patient funded the difference. The patient then challenged the legality of this top up. The Court found that the PCT's refusal to pay in full for the claimant's continuing care package at the more expensive home was reasonable, and that the arrangement was lawful. There was no breach of article 8 in the patient having to choose between making a payment of top-up fees or having to move to the less expensive care home. The claim for Judicial Review was therefore dismissed. | 2009-12-23 | 2009 cases, Brief summary, Community care, Judgment available on MHLO, Judgment missing from Bailii, Transcript |
| R (Johnson) v SSJ [2009] EWHC 3336 (Admin) — The Secretary of State's decision that the next Parole Board review would occur 14-15 months after the last review was unsupported by any reason and, on the facts, inconsistent with Article 5(4). | 2009-12-23 | 2009 cases, Brief summary, Judgment available on Bailii, Prison law cases, Transcript |
| R (P) v HM Coroner for the District of Avon [2009] EWCA Civ 1367 — In this inquest to which Article 2 applied (suicide in prison) the Deputy Coroner misdirected the jury because she did not properly explain to them that, if they returned a verdict of suicide or accident, they could also append a narrative about the circumstances of the accident. However, in the circumstances, the verdict was not quashed. | 2009-12-23 | 2009 cases, Brief summary, Inquest cases, Judgment available on Bailii, Transcript |
| R (Manchester City Council) v St Helens Borough Council [2009] EWCA Civ 1348 — PE had voluntarily moved from St Helens to Manchester and, following the Secretary of State's decision that she was now ordinarily resident there, St Helens decided to stop funding her community care services. (1) Under s29 National Assistance Act 1948 a local authority is under a duty to provide services to those ordinarily resident in its area. (2) St Helens had a power to pay but the exercise of this power did not give rise to a duty or negate Manchester's duty, or give rise to any legitimate expectation. | 2009-12-23 | 2009 cases, Brief summary, Community care, Judgment available on Bailii, Transcript |
| R (Lewis) v HM Coroner for the Mid and North Division of the County of Shropshire [2009] EWCA Civ 1403 — A coroner is not obliged to leave to the jury a fact or circumstance which could have caused or contributed to the death but cannot be shown probably to have done so. | 2009-12-23 | 2009 cases, Brief summary, Inquest cases, Judgment available on Bailii, Transcript |
| R (Stojak) v Sheffield City Council [2009] EWHC 3412 (Admin) — Extension of time refused for JR application relating to charging for residential after-care services. | 2009-12-23 | 2009 cases, After-care, Brief summary, Judgment available on Bailii, Transcript |
| Salford City Council v BJ [2009] EWHC 3310 (Fam) — Following a final hearing concerning deprivation of liberty the previous year, the judge now had to determine: (a) the nature and timing of future reviews by the court, (b) the nature and timing of future internal reviews by the local authority, and (c) whether the proceedings should now be transferred to the Court of Protection. | 2009-12-17 | 2009 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript |
| Re Clarke (2009) COP 18/11/09 — The donor appointed three attorneys, A (his wife), B, and C, to be his attorneys. They were appointed to act jointly in some matters and jointly and severally in others. He then stated that the attorneys were to act together for transactions not exceeding £5,000 "but together in respect of all other decisions subject to my wife A's opinion prevailing in the event that my attorneys are not unanimous in any decision involving property or expenditure exceeding £5,000". On the application of the Public Guardian, the words "subject to my wife A's opinion" onwards were severed on the ground that they purported to facilitate one of the three attorneys being able to act independently in relation to matters that had been specified as subject to the joint decision of the attorneys. [OPG summary.] | 2009-12-16 | 2009 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, Transcript |
| Re Kittle (2009) COP 1/12/09 — Regulation 8(3) of the LPA, EPA and PG Regulations 2007 sets out categories of persons who cannot act as certificate provider. Included in the list is "a family member" of the donor or of the attorney (or of the owner, director, manager or employee of any care home in which the donor is living when the instrument is executed). In this case the certificate provider was the donor's first cousin. The Public Guardian declined to register the instrument on the ground that a first cousin was a family member of the donor. The court ruled that a first cousin is not a family member, and so the LPA was valid. [OPG summary.] | 2009-12-16 | 2009 cases, Brief summary, Judgment available on MHLO, LPA cases - formalities, Neutral citation unknown or not applicable, Transcript |
| R (Domb) v London Borough of Hammersmith and Fulham [2009] EWCA Civ 941 — The council's decision to make charges for non-residential home care services provided pursuant to the Health and Social Services and Social Security Adjudications Act 1983 was challenged (unsuccessfully) on the basis that the council did not have "due regard" to its general equality duties. | 2009-12-14 | 2009 cases, Brief summary, Disability discrimination, Judgment available on Bailii, Transcript |
| Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298 — The employment judge had permitted an out-of-time DDA claim to proceed; he was entitled to exercise his discretion (on whether, in all the circumstances of the case, he considered that it was just and equitable to do so) as he did. | 2009-12-14 | 2009 cases, Brief summary, Disability discrimination, Judgment available on Bailii, Transcript |
| Re Allen (2009) COP 21/7/09 — Under MCA 2005 s4(7) any best interests decision-maker "must take into account, if it is practicable and appropriate to consult them, the views of" various categories of individuals. Where any attempt at consultation will inevitably be unduly onerous, futile, or serve no useful purpose, it cannot be in P’s best interests, and it would be neither practicable nor appropriate to embark on that process in the first place. | 2009-12-14 | 2009 cases, Best interests, Detailed summary, Judgment available on MHLO, Neutral citation unknown or not applicable, No transcript, Pages using DynamicPageList3 parser function |
| R (Miller) v Independent Assessor [2009] EWCA Civ 609 — The Independent Assessor must have erred in law by failing to make proper use of the civil law awards, because without much explanation he arrived at an award which is irrationally low (namely £55,000 for over 4 years' detention following wrongful conviction for murder). | 2009-12-09 | 2009 cases, Deprivation of liberty, Detailed summary, ICLR summary, Judgment available on Bailii, Transcript |
| C v Clinical Director of St Patricks Hospital [2009] IEHC 13 — This is an application on behalf of the applicant for a declaration that the applicant is unlawfully detained by the first respondent contrary to Article 40.4 of the Constitution. The essence of the applicant’s case is that prior to her arrival at the respondent’s hospital, she was initially detained by the gardaí and unlawfully removed to the hospital by them. The applicant argues that this alleged unlawful detention by the gardaí, has tainted the subsequent detention by the respondents even though, by and large, apart from this initial reception the respondents have meticulously followed the proper procedures for dealing with such persons as set out in the legislation and the Mental Health Act 2001 in particular. | 2009-12-09 | 2009 cases, Judgment available on Bailii, No summary, Southern Irish cases, Transcript, Unlawful detention cases |
| AB v Nugent Care Society [2009] EWCA Civ 827 — In these appeals, arising from allegations of historic sexual abuse at children's homes, guidance was given on the correct approach to the application of s33 Limitation Act 1980 in the light of A v Hoare [2008] UKHL 6B. | 2009-12-07 | 2009 cases, Brief summary, Judgment available on Bailii, Miscellaneous cases, Transcript |
| R (Cart) v Upper Tribunal [2009] EWHC 3052 (Admin) — (1) Decisions of inferior courts are subject to judicial review for exceeding their jurisdiction. Excess of jurisdiction can mean either the court (a) embarks on a case beyond its statutory remit, or (b) makes a legal mistake. (2) Judicial review of the Upper Tribunal is not ousted by s3 TCEA 2007. (3) The UT is, for the relevant purposes, an alter ego of the High Court, and it would never be right to exercise the JR jurisdiction on the ground that it had made a legal mistake. (4) Decisions of the UT are only amenable to JR for excess of jurisdiction or where there is a wholly exceptional collapse of fair procedure (something as gross as actual bias). (5) Consideration was also given to the status of SIAC decisions. [Caution.] | 2009-12-07 | 2009 cases, Brief summary, Judgment available on Bailii, Other Tribunal cases, Transcript |
| Seal v UK 50330/07 [2009] ECHR 806 — Statement of facts and question lodged with court. Case concerns the procedure under s139 MHA 1983. | 2009-12-04 | 2009 cases, Brief summary, ECHR, Judgment available on Bailii, Miscellaneous cases, Transcript |
| Anam v SSHD [2009] EWHC 2496 (Admin) — It is the Secretary of State's policy not to detain mentally ill persons pending deportation, save in "very exceptional circumstances". The claimant was entitled to a declaration that the SoS had unlawfully failed to consider the implications of his policy; however, the detention was not in breach of the policy, and continued detention was lawful. | 2009-12-04 | 2009 cases, Brief summary, Judgment available on Bailii, Repatriation cases, Transcript |
| MS v UK 24527/08 [2009] ECHR 1762 — Statement of facts and question lodged with the court. The case relates to detention under s136 beyond the permitted 72-hour period and a subsequent civil claim against the Trust for negligence, for breaches of Articles 3 and 8 of the Convention, and for misfeasance in public office. | 2009-12-04 | 2009 cases, Brief summary, Judgment available on Bailii, Miscellaneous cases, Transcript |
| Hurst v UK 42577/07 [2009] ECHR 1988 — Statement of facts and questions lodged with the court (case relates to Article 2-compliant inquests). | 2009-12-04 | 2009 cases, Brief summary, ECHR, Inquest cases, Judgment available on Bailii, Transcript |
| West v General Social Care Council [2009] UKFTT 330 (HESC) — The applicant mental health social worker successfully appealed against a decision made by the respondent's Preliminary Proceedings Committee to impose an six-month Interim Suspension Order. | 2009-12-04 | 2009 cases, Brief summary, Judgment available on Bailii, Miscellaneous cases, Transcript |
| Halilovic v Bosnia and Herzegovina 23968/05 [2009] ECHR 1933 — (1) The appellant's detention for 4 years 5 months was pursuant to an administrative decision, as opposed to a decision of the competent civil court as required by the amended domestic legislation, and so breached Article 5(1); compensation of €22,500 was awarded. (2) The Article 3 claim relating to conditions of detention failed. | 2009-12-04 | 2009 cases, Brief summary, ECHR, ECHR deprivation of liberty cases, Judgment available on Bailii, Transcript |
| C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin) — (1) When trying a young child, and most particularly a child such as C who is only 12 with learning and behavioural difficulties, notwithstanding the absence of any express statutory power, the Youth Court has a duty under its inherent powers and under the Criminal Procedure Rules to take such steps as are necessary to ensure that he has a fair trial, not just during the proceedings, but beforehand as he and his lawyers prepare for trial; in this case, C required an intermediary. (2) As the MoJ had voluntarily accepted responsibility for the payment of intermediaries, the LSC decision not to provide funding was lawful. (3) The CPS decision to continue with the trial was lawful. | 2009-11-30 | 2009 cases, Brief summary, Judgment available on Bailii, Other criminal law cases, Transcript, Unfitness and insanity cases |
| Re Portues (2009) COP 6/1/09 — In Part B of the instrument the donor appointed attorneys to act jointly and severally and struck out the words “with general authority to act”, leaving in place the words “with authority to do the following”. She did not include any instructions under those words to indicate the scope of the attorneys’ powers. On the application of the attorney for rectification of the instrument, the court was satisfied that it was the donor’s intention to confer general authority on the attorneys and that the deletion of those words was a clerical error. The court declared that the EPA was to be read and construed as if the donor granted general authority to the attorneys and directed the Public Guardian to reconsider the registration of the EPA in the light of the declaration. [OPG summary - EPA case.] | 2009-11-29 | 2009 cases, Brief summary, EPA cases - formalities, Judgment does not exist, No transcript |
| Re Sawyer (2009) COP 31/3/09 — In Part B of the EPA the donor appointed four attorneys, but omitted to strike out either option "jointly" or "jointly and severally" in relation to how they should act. On the application of the attorneys, the court was satisfied that the donor had intended to appoint them to act jointly and severally, and directed that the EPA should be construed as if they had been appointed jointly and severally and the alternative option "jointly" had been deleted. The Public Guardian was directed to attach a note to that effect to the registered EPA. [OPG summary - EPA case.] | 2009-11-29 | 2009 cases, Brief summary, EPA cases - formalities, Judgment does not exist, No transcript |
| Re Shepherd (2009) COP 13/3/09 — The donor appointed three attorneys to act jointly, adding the words "Any two out of the three attorneys shall have power to sign jointly on my behalf". The court severed these words as being incompatible with a joint appointment. [OPG summary - EPA case.] | 2009-11-29 | 2009 cases, Brief summary, EPA cases - severance of restrictions, Judgment does not exist, No transcript |
| Re Bainbridge (2009) COP 10/3/09 — The donor appointed her three children to act jointly, adding the restriction "PROVIDED THAT in the event that any one or more of my said children shall die or shall for any other reason be unable to act as my Attorneys then I appoint my remaining children to be my Attorneys for the purpose of the Enduring Powers of Attorney Act 1985 and in the event that only one of my said children shall be able to act as my Attorney then I appoint him/her as my sole Attorney for the purposes of the Enduring Powers of Attorney Act 1985." On the application of the attorneys under paragraph 4(5) of Schedule 4 of the Mental Capacity Act 2005 to determine whether the power was valid, the court severed the restriction as being incompatible with a joint appointment. (OPG summary.) | 2009-11-29 | 2009 cases, Brief summary, EPA cases - severance of restrictions, Judgment does not exist, No transcript |
| Re Rayner (2009) COP 9/6/09 — The donor appointed A and B as attorneys to act jointly and severally with general authority to act in relation to all her property and affairs. She then imposed a restriction, stating that A and B should not act in relation to properties jointly owned with the donor, and that C was appointed as attorney in relation to these properties. On the application of the attorney the restriction was severed, with the result that A and B could act in relation to all the donor's property and affairs and C could not act. [OPG summary - EPA case.] | 2009-11-29 | 2009 cases, Brief summary, EPA cases - severance of restrictions, Judgment does not exist, No transcript |
| Re Meaker (2009) COP 16/6/09 — The donor appointed two attorneys to act jointly and severally. She added the following restriction: "My attorneys shall act jointly at all times unless the death, incapacity or bankruptcy of either one of them shall preclude her from acting, in which case the other Attorney shall continue to act alone". On the application of the attorney the restriction was severed as being ineffective as part of an EPA. (OPG summary.) | 2009-11-29 | 2009 cases, Brief summary, EPA cases - severance of restrictions, Judgment does not exist, No transcript |
| Re Dunningham (2009) COP 15/9/09 — (1) In Re Dunningham: The donor appointed two attorneys, A and B, to act jointly and severally. She then imposed the following restriction: "and the said B shall have no authority to act on my behalf unless the said A has died or is incapable of acting as my Attorney". On the application of the attorneys for severance, the court severed the restriction as being inconsistent with a joint and several appointment. (2) In Re Taylor: on similar facts, the court severed the words 'jointly and severally' [OPG summaries - EPA cases.] | 2009-11-29 | 2009 cases, Brief summary, EPA cases - severance of restrictions, Judgment does not exist, No transcript |
| Re Bridge (2009) COP 25/9/09 — The donor appointed three attorneys to act jointly and severally. He imposed the following restriction: "2 of the 3 can deal with any household or every day expenses, but for any other issues I would like all 3 attorneys to be signatories. In particular I would not like my house to be sold or money to be invested without agreement and signatory from all 3. My money and assets are to be used to cover my care and living expenses in old age and ill health." On the application of an attorney the court directed severance of the restriction as being ineffective as part of an EPA. (OPG summary.) | 2009-11-29 | 2009 cases, Brief summary, EPA cases - severance of restrictions, Judgment does not exist, No transcript |
| Re Robinson (2009) COP 18/9/09 — An EPA provided that "My Attorneys shall have power to deal with my affairs from time to time as may be necessary to reduce the incidence of Inheritance Tax at the date of my death provided that lump sum payments shall only be made to or on behalf of such persons who would otherwise receive the benefit of my estate as residuary beneficiaries (either original or substituted) of my Will." On the application of the attorneys the court severed this restriction on the ground that it would be ineffective as part of an EPA (because it exceeded the statutory power to make gifts under Sched 4 paragraph 3 of the MCA). [OPG summary - EPA case.] | 2009-11-29 | 2009 cases, Brief summary, EPA cases - severance of restrictions, Judgment does not exist, No transcript |
| Re Hollins (2009) COP 10/6/09 — In Part B of the instrument, under the heading "subject to the following restrictions and conditions", the donor wrote "See attached supplement". The attached supplement listed extended powers, including: (1) Extended powers to deal with my affairs, (2) Power to consent to medical treatment, and (3) Extended power to make gifts. The Public Guardian refused registration on the ground that the first two of the above provisions did not relate to the donor's property and affairs, and that the third was inconsistent with Schedule 4, para 3(3) of the Mental Capacity Act. On the attorney's application, the court directed severance of the attached supplement and the reference to it in Part B of the instrument. [Full details of supplement available on case page.] | 2009-11-29 | 2009 cases, Brief summary, EPA cases - severance of restrictions, Judgment does not exist, No transcript |
| Re Viveash (2009) COP 21/9/09 — An EPA provided that "I grant to my attorneys the power to deal with all matters concerning my welfare health and matters of a personal nature to me and all other matters affecting me or my possessions." On the application of the attorneys the court severed the restriction on the ground that it would be ineffective as part of an EPA. [OPG summary - EPA case.] | 2009-11-29 | 2009 cases, Brief summary, EPA cases - severance of restrictions, Judgment does not exist, No transcript |
| Re King (2009) COP 14/7/09 — An EPA provided that "In case that I am unable to take part in decisions about my medical care then I appoint my Attorney to represent my views about them if I am unable to do so". On the application of the attorney the court severed this provision on the ground that it would be ineffective as part of an EPA. (OPG summary.) | 2009-11-29 | 2009 cases, Brief summary, EPA cases - severance of restrictions, Judgment does not exist, No transcript |
| Re Ditcham (2009) COP 12/5/09 — An EPA provided that "my attorney(s) may take decisions on where I shall live provided that these decisions are made in my best interests and may negotiate with Social Services and any other relevant authorities to secure the best treatment and accommodation on my behalf that can be provided". On the application of the attorneys the court severed this provision on the ground that it would be ineffective as part of an EPA. (OPG summary.) | 2009-11-29 | 2009 cases, Brief summary, EPA cases - severance of restrictions, Judgment does not exist, No transcript |
| Re Vallet (2009) COP 27/1/09 — The original EPA could not be produced, nor was there a certified copy in existence. Regulation 24(2) of the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 provides that, in such a case, the Public Guardian must not register without an order of the court. On the application of the attorney the court declared that it was satisfied that the copy was a copy of the original EPA, which had been lost but not revoked, and directed registration. [OPG summary - EPA case.] | 2009-11-29 | 2009 cases, Brief summary, EPA cases - formalities, Judgment does not exist, No transcript |
| Re Baldwin (2009) COP 14/5/09 — The donor appointed X as original attorney, Y as the replacement for X, and Z as the replacement for Y if Y was unable or unwilling to act. On the application of the Public Guardian the court directed the severance of the appointment of Z on the ground that the MCA does not permit a donor to appoint a person to take over as a second replacement attorney if the first replacement attorney starts to act and then becomes unable to act. (OPG summary.) | 2009-11-29 | 2009 cases, Brief summary, Judgment does not exist, LPA cases - substitute attorneys, No transcript |
| Re Sporne (2009) COP 13/10/09 — The instrument had two defects: (i) the certificate provider had failed to tick the first two mandatory boxes in Part B, and (ii) the attorney had executed Part C before the certificate provider had signed Part B, contrary to Regulation 9 of the LPA, EPA and PG Regulations 2007. The Public Guardian's normal practice in such a case is to request fresh Parts B and C, but the donor had lost capacity. The attorney applied to court for the determination of the validity of the instrument. The court order recorded that, while the court could have exercised its discretion under paragraph 3(2) of Schedule 1 of the MCA in respect of the defect in Part B of the instrument, it could not exercise any discretion to validate a significant procedural error in respect of the requirements for the completion and execution of Parts A, B and C. It further recorded that the errors could not now be rectified as the donor had lost capacity. The court, therefore, refused to direct registration of the ..→ | 2009-11-29 | 2009 cases, Brief summary, Judgment does not exist, LPA cases - formalities, No transcript |
| Re Ker (2009) COP 21/9/09 — The donor in Part A of the LPA form omitted to tick the box to confirm that he had chosen his certificate provider himself. The Public Guardian refused registration on the ground that the instrument was not in prescribed form. On the attorney's application, the court exercised its discretion under paragraph 3(2) of Schedule 1 to the MCA 2005 and declared that the instrument, although not in the prescribed form, was to be treated as if it were a lasting power of attorney. Registration was directed accordingly. (OPG summary.) | 2009-11-29 | 2009 cases, Brief summary, Judgment does not exist, LPA cases - formalities, No transcript |
| Re Sykes (2009) 9/7/09 — The donor of a property and affairs LPA imposed a restriction stating that no gifts of any of her assets should be made other than "annual or monthly gifts already being made by me at the date of my signing this LPA by regular bank standing orders or direct debits". On the application of the Public Guardian the court severed this restriction on the ground that the gifts envisaged by the donor exceeded the attorney's authority to make gifts as set out in section 12 of the MCA 2005. (OPG summary.) | 2009-11-29 | 2009 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript |
| Re Reading (2009) COP 25/6/09 — The donor appointed her husband and two of her children as original attorneys and a third child as replacement attorney. She added a restriction to the effect that, if her husband should predecease her, any decisions "must be agreed by all four of my children". The fourth child had not been appointed as attorney or replacement attorney. On the application of the Public Guardian the restriction was severed as being ineffective as part of an LPA, because it was not open to the donor to require that a person who was not an attorney should join in the making of decisions by the attorneys. (OPG summary.) | 2009-11-29 | 2009 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript |
| Re Bratt (2009) COP 14/4/09 — The donor appointed two attorneys, A and B, to act jointly and severally, and directed that "B is only to act as attorney in the event of A being physically or mentally incapable of acting in this capacity". On the application of the Public Guardian this provision was severed as being inconsistent with a joint and several appointment. The Senior Judge added that, to have achieved the desired objective, the donor should instead have appointed B to be a replacement attorney. (OPG summary.) | 2009-11-29 | 2009 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript |
| Re P (2009) COP 9/6/09 — The donor appointed three attorneys to act jointly and severally, and imposed the following restriction: "I require that two attorneys must act at any one time so that no attorney may act alone." On the application of the Public Guardian the court severed the restriction on the ground that it was ineffective as part of an LPA. (OPG summary.) | 2009-11-29 | 2009 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript |
| Re Azancot (2009) COP 27/5/09 — The donor of a personal welfare LPA inserted a restriction that her replacement attorneys "may only act under this power in the event that the donor is physically or mentally incapacitated and there is written medical evidence to that effect". The words "physically or" were severed on the application of the Public Guardian, as the effect of section 11(7) of the MCA is that a personal welfare attorney may not make a decision unless the donor lacks mental capacity to make it. (OPG summary.) | 2009-11-29 | 2009 cases, Brief summary, Judgment does not exist, LPA cases - severance of restrictions, No transcript |
| R (Turner) v Southampton City Council [2009] EWCA Civ 1290 — Unsuccessful challenge to the closure of care homes on Article 2 grounds: the test of a "real and immediate risk" is one that is not readily satisfied, in other words the threshold is high; the evidence in this case fell far short of the threshold. Interesting post-script to judgment, critical of solicitor and her repeated similar claims. | 2009-11-27 | 2009 cases, Brief summary, Community care, Judgment available on Bailii, Transcript |
| Re Furlow (2009) COP 1/10/09 — The donor appointed X and Y to act jointly and severally. He included the following provision: "X shall act with general authority on my behalf in relation to all my property and affairs. Y shall act with authority to do the following on my behalf: To deal with my bank accounts and savings and investments in relation to my bank accounts, savings accounts and investments." He then added: "Y may deal with my bank investments subject to my prior approval." On the attorney's application, both provisions were severed. The first was incompatible with a joint and several appointment (as one attorney had more limited powers than the other), and the second was unworkable after the donor's loss of capacity. [OPG summary.) | 2009-11-26 | 2009 cases, Brief summary, EPA cases - severance of restrictions, Judgment does not exist, No transcript |
| Re Ellis (2009) COP 17/11/09 — The donor appointed his wife as the original attorney and then appointed his two children as substitute attorneys to act in the event that the original attorney should be unable to act. However, the donor failed to specify whether the substitute attorneys should act jointly or jointly and severally. On the application of the attorneys, the appointment of the substitute attorneys was severed. Although the decision in Re J confirmed that substitute attorneys may be appointed in an EPA, the appointment of two or more substitutes is invalid if the donor has not specified that they are to act either jointly or jointly and severally. [OPG summary - EPA case.] | 2009-11-25 | 2009 cases, Brief summary, EPA cases - substitute atorneys, Judgment does not exist, No transcript |
| GJ v The Foundation Trust [2009] EWHC 2972 (Fam) — {{Case
|Date=2009-11-20 |NCN=[2009] EWHC 2972 (Fam)M |Other citations=(2009) 12 CCL Rep 600, [2010] 3 WLR 840B, [2009] EWHC 2972 (Fam)M, [2010] Fam Law 139, [2010] 1 FLR 1251B, [2010] Fam 70B, [2009] EWHC 2972 (COP)B |Court=Court of Protection |Judges=Charles |Parties=GJ, The Foundation Trust, The PCT, Secretary of State for Health |Sentence=MHA/MCA detention interface |Summary=(1) As between the MHA 1983 and the MCA 2005 Deprivation of Liberty Safeguards, the MHA has primacy: professionals cannot pick and choose as they think fit. (2) In deciding whether P is within the scope of the MHA, the eligibility assessor must ask whether, in his own opinion, P could be detained under the MHA. (3) With respect to objections, what matters is whether P objects generally to what is proposed. (4) The correct overall approach for the eligibility assessor is to (a) look at the reality of the situation, rather than the words of the authorisation, (b) separate the mental treatment from the purely physical treatment, and (c) apply a "but for" test, i.e. whether, but for the physical treatment, P should be detained (and whether the only effective reason for detention is physical treatment); if "no" (and "yes", respectively) then P isn't ineligible for DOLS. (5) On the facts, but for his diabetes, P would not have been detainable, so he was not ineligible. It is worth reading the full summary page and the judgment. |Detail===Background== The question in this case was whether P was "ineligible to be deprived of liberty" under the MCA 2005, which required a consideration of the interface between the MCA 2005 and the MHA 1983. The principle of ineligibility applies equally to orders of the Court of Protection as it does to DOLS authorisations, and the term "relevant instrument" below means either. This case applies only to deprivation of liberty in hospital. In this summary "detention" is used as shorthand for both "deprivation of liberty" under the MCA/Article 5 and "detention" under the MHA, as on the facts there was no distinction. Schedule 1A MCA 2005 deals with ineligibility for DOLS. Cases A-D apply to those already subject to various provisions of the MHA 1983, and give primacy to the MHA. The claimant was not subject to the MHA 1983 so Case E potentially applied. Case E provides that P is ineligible for DOLS if both:
| 2009-11-24 | 2009 cases, Cases, Deprivation of liberty, Judgment available on Bailii, Judgment available on MHLO, Other capacity cases, Pages using DynamicPageList3 parser function, Transcript |
| R v Charisma [2009] EWCA Crim 2345 — The appellant argued that his mental condition had made it undesirable for him to have given evidence, so no direction under s35 Criminal Justice and Public Order Act 1994 (adverse inference from failure to give evidence) should have been given; he was unsuccessful. | 2009-11-20 | 2009 cases, Brief summary, Judgment available on Bailii, Other criminal law cases, Transcript |
| Johnston v Chief Constable of Merseyside Police [2009] EWHC 2969 (QB) — (1) A court faced with an application for permission under s139(2) must (a) balance the applicant's interest to be allowed to seek the adjudication of the courts upon any claim which is not frivolous, vexatious or an abuse of process, and the equally legitimate interest of the respondent not to be subjected to the risk of being harassed by baseless claims, and (b) consider whether the proposed claim has a real prospect of success. (2) On the facts, permission was granted. (3) Under the relevant test under the Limitation Act 1980 (which was explained) the 3-year limitation period on the assault claim was dis-applied. | 2009-11-20 | 2009 cases, Brief summary, Judgment available on Bailii, Miscellaneous cases, Transcript |
| R v Evans [2009] EWCA Crim 2243 — Unsuccessful appeal, which had been on the basis that (1) his guilty plea was based on wrong advice, and (2) memories recovered since his plea would have provided a defence based on (a) provocation or (b) diminished responsibility. | 2009-11-16 | 2009 cases, Brief summary, Diminished responsibility cases, Judgment available on Bailii, Transcript |
| Re RB (A Child) [2009] EWHC 3269 (Fam) — Transcript of judge's sentencing remarks, endorsing the parties' agreement that administration of a large dose of sedative, the removal of the ventilation tube and consequent death (rather than discharge from hospital on home ventilation after a tracheostomy) were in the baby's best interests. | 2009-11-16 | 2009 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript |
| Independent News and Media Ltd v A [2009] EWHC 2858 (Fam) — The media sought, not that the CoP hearing be public, but that they be authorised to attend the hearing and be subject to reporting restrictions. CoP proceedings are excluded from the general 'open justice principle' so the media's Article 10 rights are not automatically engaged, and the court must rather adopt a two-stage approach: (1) Whether a 'good reason' (a gatekeeping test from the Rules, the standard for which is not high) for making the order can be established; (2) If there is a 'good reason', a balancing test must be applied to P's Article 8 rights and the media's Article 10 rights. On the facts: (1) There was a 'good reason' as (a) the issues were already in the public domain, (b) the court's powers can preserve privacy, and (c) it is the public interest to understand how the court operates; (2) The media would be allowed to attend, as the concerns for privacy and publicity could both be met by permitting some reporting but requiring the media to demonstrate what ..→ | 2009-11-12 | 2009 cases, Brief summary, ICLR summary, Judgment available on Bailii, Other capacity cases, Transcript |
| DCC v KH (2009) COP 11729380 — (1) A DOLS standard authorisation was sufficient to return P on the long journey from contact sessions to the residential accommodation: the Code of Practice paragraphs saying that conveyance may require a court order only apply where no SA is in place. (2) It was inappropriate to seek an anticipatory declaration for the use of force, as MCA 2005 s5 and s6 permitted restraint. (3) The interim residence order should be enough to persuade the police to facilitate P's return. | 2009-11-12 | 2009 cases, Brief summary, Deprivation of liberty, Judgment available on MHLO, Neutral citation unknown or not applicable, Transcript |
| Baker v H [2009] EWCOP B31 — {{Case
|Date=2009/10/15 |NCN=[2009] EWCOP B31M |Other citations=[2009] EWHC B31 (COP)B, (2009) 12 CCL Rep 695, [2010] 1 WLR 1103B, [2009] WTLR 1719, [2009] EWHC B31 (Fam)B |Court=Court of Protection |Judges=Hazel Marshall |Parties=Niall Baker, H, Official Solicitor |Sentence=Deputy security bonds |Summary=(1) The judgment sets out a structured general approach to considering the setting of security and its interplay with the terms of appointment of a deputy; (2) On the facts, the level of security was reduced from £750k to £175k. |Detail===Extract from judgment== Summary of general guidance 106. In final summary, then, I set out below what is, in my judgment, a properly structured general approach to considering the setting of security and its interplay with the terms of appointment of a deputy. It largely follows the order of the factors which I have set out above. I do so with grateful acknowledgement to the argument of Mr Rees as amicus curiae, on whose submissions it is based. It can be taken as a useful executive summary guide, whilst bearing in mind that it is only a [words missing from transcript] (1) If the Court has real doubts about whether a deputy can be trusted with P’s assets, then it must consider not appointing him as a deputy. Alternatively (if this will largely allay such doubts) the court can and should consider imposing limits on the funds under the deputy’s control and, in particular, should consider whether the general words of the order appointing the deputy should be narrowed to prevent his having any authority to deal with any property occupied by P as his home, (or any interest of P therein) without further order of the court. (2) The court should then consider the amount of funds that are to be placed in the deputy’s hands or under his control, and envisage the costs and/or loss to P if there were to be a total default by the deputy. (3) The court should then consider whether the deputy carries professional indemnity insurance which would be effective to replace P’s assets in his hands in the event of such a total default. This will include reviewing such matters as the level of aggregation of assets in the hands of a single deputy relative to his insurance. (4) In the absence of adequate insurance cover then the starting point will be the value of the assets in or passing through the deputy’s hands. This consideration may lead back to a review of the terms of the deputyship order with a view to limiting the value of the vulnerable assets. (5) Where the deputy apparently has adequate and effective professional indemnity insurance, then the court
[(6)] Having formed the above provisional view as to the appropriate level of security, the court should finally consider the level of premium and whether this would cause P undue financial hardship, or would otherwise in all the circumstances (including the apparent status of the deputy) appear to be an unjustifiable or wasteful use of P’s resources, when balanced against the benefit of having that security. Special circumstances (eg husband/wife deputyships, or lay deputies of obvious stature, or situations in which the real risk would appear to be merely negligence rather than total default) may mitigate this, but must provide some real justification for taking the view that such a level of security is not reasonably necessary. The court will then decide whether it is in P’s best interests to maintain the level of security originally assessed, or to reduce it to any extent. | 2009-11-09 | 2009 cases, Cases, Deputyship cases, Judgment available on Bailii, Pages using DynamicPageList3 parser function |
| EBR Attridge Law LLP v Coleman (2009) UKEAT 0071/09 — The Disability Discrimination Act 1995 should be interpreted so as to prohibit discrimination against employees who, although not themselves disabled, were treated less favourably or harassed on the ground of their association with a person who was disabled. | 2009-11-09 | 2009 cases, Detailed summary, Disability discrimination, ICLR summary, Judgment available on Bailii, Transcript |
| Re Murdoch (2009) COP 30/10/09 — The donor executed an instrument intended to be a personal welfare LPA. It contained the following defects: (i) the certificate provider had failed to tick the first two mandatory boxes in Part B, (ii) the attorney had failed to tick any of the boxes in Part C, although he had dated and executed it, and (iii) the replacement attorney had ticked the appropriate boxes in his Part C but had not dated or executed it. The Public Guardian refused to register the instrument, and the donor subsequently lost capacity. On the attorney's application, the court directed the Public Guardian not to register the instrument, because "the errors in its execution are too fundamental". | 2009-11-09 | 2009 cases, Brief summary, Judgment does not exist, LPA cases - formalities, No transcript |
| KD and LD v LB Havering [2009] EW Misc 7 (EWCOP) — At a hearing which was expected to be merely interlocutory, the DJ made final orders as to capacity and residence, and appointed the local authority as personal welfare deputy. (1) The power to deal with cases summarily exists but was exercised unlawfully in this case. It is to be exercised as an alternative to a hearing, for example in an emergency or where little or no contest is anticipated. It is unlikely to be exercised appropriately where there is a serious issue or potential issue as to the appropriateness of deprivation of liberty and so where Articles 5 and 6 are potentially engaged. The DJ had achieved an impermissible hybrid, in the course of a hearing exercising powers potentially available to the Court instead of a hearing. (2) A summary decision of best interests must be made by reference to the evidence and the matters in MCA 2005 s4, but this exercise was not fully carried out. (3) There was a breach of procedural fairness and Article ..→ | 2009-10-29 | 2009 cases, Best interests, Detailed summary, Judgment available on Bailii, Transcript |
| R (Corbett) v SSJ [2009] EWHC 2671 (Admin) — The decision to make C subject to polygraph testing as a condition of his licence did not breach the his Article 8 rights given the seriousness of his offences and his attitude to them; that the scheme was a pilot in his geographical area did not amount to discrimination under Article 14. | 2009-10-24 | 2009 cases, Brief summary, Judgment available on Bailii, Miscellaneous cases, No transcript |
| R (E) v Governing Body of JFS (No 2) [2009] UKSC 1 — If the LSC decide fund a successful litigant, that decision must ordinarily be seen to carry with it something close to an assurance that the Commission will continue to support him in any subsequent appeal by the unsuccessful party; the LSC's decision not to continue funding without a protective costs order against the appellent was unlawful and public funding was therefore to continue. | 2009-10-24 | 2009 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript |
| R v Ghulam [2009] EWCA Crim 2285 — Under CPIA 1964 s4 the court must not make a determination that the defendant is unfit to plead without medical evidence from two medical practitioners; however, where the medical evidence of unfitness to plead is only available from one medical practitioner, the judge is not bound to adjourn the trial but can make a determination that the defendant is fit to plead. | 2009-10-24 | 2009 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Transcript, Unfitness and insanity cases |
| Re M; ITW v Z [2009] EWHC 2525 (Fam) — Statutory will case. | 2009-10-19 | 2009 cases, Brief summary, Judgment available on Bailii, Statutory will cases, Transcript |
| AA v Cheshire and Wirral Partnership NHS Foundation Trust [2009] UKUT 195 (AAC) — An application made while a patient is detained under section 2 or 3 does not lapse when the patient is made subject to a CTO, as s72(1) (powers of tribunals) should be given a literal construction. Preliminary points: (1) Discussion on Law Society guidance and cases where client lacks full capacity. The Upper Tribunal has no power to appoint a litigation friend or equivalent, and the OS's powers and duties apply to court proceedings not tribunals; in any event, justice did not require a litigation friend as the potential "best interests" argument was argued by other parties. (2) It was not unlawful for a First-tier Tribunal judge to consider an application for permission to appeal from, or a review of, his own decision. | 2009-10-13 | 2009 cases, Brief summary, Change of status cases, Judgment available on Bailii, Transcript, Upper Tribunal decisions |
| R (X) v SSJ [2009] EWHC 2465 (Admin) — The Secretary of State had rejected an application for escorted community leave because of the nature of the index offence and the perspective of the victim's family. (1) The decision was quashed because neither the question of risk to others nor the positive benefits to the patient had been considered (irrationality, failure to take into account relevant considerations and considering irrelevant ones). (2) The reasons presented in the summary grounds of defence were patently not the reasons for the decision. | 2009-10-12 | 2009 cases, Brief summary, Judgment available on Bailii, Ministry of Justice cases, Transcript |
| R (PP) v SSJ [2009] EWHC 2464 (Admin) — The Secretary of State's decision to reject an application for a restricted patient to be granted trial leave to a medium secure unit was lawful; he was not bound to seek alternative evidence even where the evidence before him was unanimously in favour or leave being granted. | 2009-10-12 | 2009 cases, Brief summary, Judgment available on Bailii, Ministry of Justice cases, Transcript |
| R (AB) v SSJ [2009] EWHC 2220 (Admin) — Continued detention of pre-operative male-to-female transsexual in male prison breached Article 8 and was Wednesbury unreasonable. | 2009-10-09 | 2009 cases, Brief summary, Judgment available on Bailii, Prison law cases, Transcript |
| R (McKinnon) v SSHA [2009] EWHC 2449 (Admin) — Asperger's Syndrome hacker extradition case: no permission to apply for JR on Article 8 grounds; no certificate on points of law of general public importance on the Article 3 grounds; no permission to appeal. | 2009-10-09 | 2009 cases, Brief summary, Judgment available on Bailii, Repatriation cases, Transcript |
| Stockton On Tees Borough Council v Aylott (2009) UKEAT 0401/08/1103 — The decision in Malcolm on the correct comparator in disability-related discrimination cases also applies to employment cases. | 2009-10-08 | 2009 cases, Brief summary, Disability discrimination, ICLR summary, Judgment available on Bailii, Transcript |
| SCA Packaging Ltd v Boyle [2009] UKHL 37 — Under the Disability Discrimination Act 1995 an impairment which is treated or corrected is counted (in law) as causing disability if it (in fact) would be likely to cause disability if untreated or uncorrected: "likely" here does not mean "probable" but means "could well happen". The employee was therefore disabled and the employer was under a duty to make reasonable adjustments. | 2009-10-08 | 2009 cases, Brief summary, Disability discrimination, ICLR summary, Judgment available on Bailii, Transcript |
| R v Pedley, Martin and Hamadi [2009] EWCA Crim 840 — (1) Guidance on the proper construction of the 'significant risk' test created by section 225 Criminal Justice Act 2003 for passing sentences of imprisonment for public protection (IPP) or other indeterminate sentences. (2) Such sentences are Convention compliant. | 2009-10-08 | 2009 cases, Brief summary, Judgment available on Bailii, Other criminal law cases, Transcript |
| Jansons v Latvia [2009] EWHC 1845 (Admin) — It would be oppressive under s25 Extradition Act 2003, and contrary to his Article 8 rights, for the Latvian criminal to be extradited, because there was a substantial risk that he would commit suicide. | 2009-10-08 | 2009 cases, Brief summary, Judgment available on Bailii, Repatriation cases, Transcript |
| Dzikowski v GMC [2009] EWHC 1090 (Admin) — The GMC's decision that it was necessary for the protection of patients and in the public interest for the appellant consultant psychiatrist's name to be erased from the Medical Register was lawful. | 2009-10-08 | 2009 cases, Brief summary, Judgment available on Bailii, Miscellaneous cases, Transcript |
| Cheltenham Borough Council v Laird [2009] EWHC 1253 (QB) — The council unsuccessfully sued its former employee for damages for making, by failing to disclose her full psychiatric history, fraudulent or negligent misrepresentations in a job application. | 2009-10-08 | 2009 cases, Brief summary, Disability discrimination, Judgment available on Bailii, Transcript |
| Bury Metropolitan Borough Council v D [2009] EWHC 446 (Fam) — It was lawful for the local authority to remove a child from its mother immediately at birth without informing the mother of its intentions. | 2009-10-08 | 2009 cases, Best interests, Detailed summary, Judgment available on Bailii, Transcript |
| Bristol City Council v AW [2009] UKUT 109 (AAC) — Housing and council tax benefits. | 2009-10-08 | 2009 cases, Community care, Judgment available on Bailii, No summary, Transcript, Upper Tribunal decisions |
| Re Harries (2009) COP 22/6/09 11613871 — The witnesses to an EPA had handwritten their names but not separately signed the form, so the OPG had refused to register the EPA. The court held that the difference between a handwritten name (as opposed to a typed one) and a signature is immaterial, and ordered that the EPA be registered. | 2009-09-27 | 2009 cases, Brief summary, EPA cases - formalities, Judgment available on MHLO, Neutral citation unknown or not applicable, Transcript |
| R (Pennington) v Parole Board [2009] EWHC 2296 (Admin) — Delays by the Parole Board, both in issuing ICM directions (which caused a 2-month delay in listing the hearing) and in communicating the decision a month late, breached Article 5(4). Claims for "pure delay" - that is where a Parole Board hearing has been delayed because of a lack of resources available to or errors or omissions on the part of the Parole Board - survive the House of Lords decsion in James. Damages to be assessed at a later date. | 2009-09-27 | 2009 cases, Brief summary, Judgment available on Bailii, Prison law cases, Transcript |
| BB v South London and Maudsley NHS Foundation Trust [2009] UKUT 157 (AAC) — (1) The Tribunal panel failed to state with clarity how and why it disagreed with the reasoning of the independent psychiatrist who had recommended conditional discharge; therefore, the making of the decision involved the making of an error on a point of law. (2) The decision was not set aside: to do so would provide no practical benefit as the patient had recently re-applied to the Tribunal. | 2009-09-04 | 2009 cases, Brief summary, Judgment available on Bailii, Reasons, Transcript, Upper Tribunal decisions |
| KM v MHTS [2009] ScotSC 139 — (1) In granting a compulsory treatment order, the Mental Health Tribunal for Scotland misdirected itself in law, so its decision was set aside: in considering Regulation 5 (permitted conflicts of interest between the two recommending doctors) the Tribunal applied a subjective test of what was in the RMO's mind, rather than objectively considering whether "failure to carry out the [independent second] medical examination would result in delay which would involve serious risk to the health, safety or welfare of the patient or to the safety of other persons" (Reg 5(1)(b)). (2) No facts were found by the Tribunal which could have justified a compulsory treatment order so, rather than remitting the case to the Tribunal, the application for a compulsory treatment order was refused. | 2009-08-31 | 2009 cases, Brief summary, Judgment available on Bailii, Reasons, Scottish cases, Transcript |
| Re F [2009] EWHC B30 (Fam) — The "gateway" test for the engagement of the court’s powers under s48 (Interim orders and directions) is lower than that of evidence sufficient, in itself, to rebut the presumption of capacity. The proper test in the first instance is whether there is evidence giving good cause for concern that P may lack capacity in some relevant regard. Once that is raised as a serious possibility, the court then moves on to the second stage to decide what action, if any, it is in P's best interests to take before a final determination of his capacity can be made. | 2009-08-16 | 2009 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript |
| R (McKinnon) v SSHA [2009] EWHC 2021 (Admin) — Because of the claimant's Asperger's Syndrome, extradition to the US would cause his mental health to suffer and would create risks including suicide; however, his case did not approach Article 3 severity: the SSHA's decision to order extradition, and the DPP's decision not to prosecute in the UK (although he had admitted certain offences), were lawful. | 2009-08-10 | 2009 cases, Brief summary, Judgment available on Bailii, Repatriation cases, Transcript |
| R (Krishnapillai) v SSHD [2008] EWHC 2737 (Admin) — Mental health problems can engage Article 8 and render it disproportionate to separate a failed asylum seeker from the support of his family (in this case the mental health element involved PTSD, depression and the threat of suicide); however, deportation in this case was lawful. | 2009-08-09 | 2009 cases, Brief summary, Judgment available on Bailii, Repatriation cases, Transcript |
| R (Chahboub) v SSHD [2009] EWHC 1989 (Admin) — Failed asylum seeker's challenge to detention in prison rather than immigration centre. (1) The first of the two periods of detention was outside the 3-month JR time limit so permission was refused in respect of that period. (2) The policy with respect to whether mentally ill people should be detained did not apply to the claimant, who had a personality disorder rather than mental illness. (3) The detention was justified under common law (intention to deport, detention for reasonable period, deportation possible in reasonable period, reasonable diligence to deport). (4) His transfer from the immigration centre to prison, because he had proved unmanageable, was in accordance with policy. (5) The manner of his detention in prison (required to share cell with convicted prisoner, dietary requirements ignored, 23-hour lock-up, limited access to telephone and visitors) was contrary to policy and breached his Article 5 rights. | 2009-08-09 | 2009 cases, Brief summary, Judgment available on Bailii, Repatriation cases, Transcript |
| R (Purdy) v DPP [2009] UKHL 45 — (1) The prohibition of assisted suicide in section 2(1) Suicide Act 1961 interfered with the claimant's Article 8(1) right to respect for private life (her personal autonomy and right to self-determination). (2) This interference - in cases of the suicide of a person who is terminally ill or severely and incurably disabled, who wishes to be helped to travel to a country where assisted suicide is lawful and who, having the capacity to take such a decision, does so freely and with a full understanding of the consequences - is not "in accordance with the law" as required by article 8(2), in the absence of an offence-specific policy by the DPP which sets out the factors that will be taken into account in deciding under s2(4) whether to prosecute. (3) Therefore the DPP was required to promulgate such an offence-specific policy. | 2009-08-01 | 2009 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Other criminal law cases, Transcript |
| Rabone v Pennine Care NHS Trust [2009] EWHC 1827 (QB) — The Article 2 "Osman" operational obligation to protect life applied to detained patients, but not to the claimant who was an informal patient on leave from the hospital at the time she committed suicide. [Caution.] | 2009-08-01 | 2009 cases, Brief summary, Inquest cases, Judgment available on Bailii, Transcript |
| R v C [2009] UKHL 42 —
Sexual consent For the purposes of s30 Sexual Offences Act 2003: (1) lack of capacity to choose can be person or situation specific; (2) an irrational fear arising from mental disorder that prevents the exercise of choice could amount to a lack of capacity to choose; (3) inability to communicate could be as a result of a mental or physical disorder. Essex search<mw:editsection page="Category:2009 cases" section="1">Essex search</mw:editsection>This case's neutral citation number appears in the following newsletters: | 2009-08-01 | 2009 cases, Cases, Criminal law capacity cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Sex and marriage cases |
| Perrins v Holland [2009] EWHC 1945 (Ch) — The testator had testamentary capacity at the time that he gave instructions for the will, but not when he executed it; however, when he executed the will he believed that it gave effect to his previous instructions, it did in fact do so, and the instructions remained his testamentary wishes. Therefore the court pronounced in favour of the will. | 2009-08-01 | 2009 cases, Brief summary, Judgment available on Bailii, Other capacity cases, Transcript |
| R (TF and Thompson) v SSHD [2009] EWCA Civ 792 — (1) The indefinite nature of the notification requirements of Part 2 of the Sexual Offences Act 2003 (the Sex Offenders Register) is a disproportionate breach of Article 8: there is no opportunity for review of the necessity of the requirements, and the case is stronger in the case of young offenders. (2) The scheme where it related to foreign travel did not breach article 4 ("right of exit") of EC Council Directive 2004/38. | 2009-07-29 | 2009 cases, Brief summary, ICLR summary, Judgment available on Bailii, Other criminal law cases, Transcript |
| R v Khan [2009] EWCA Crim 1569 — (1) The judge had been right to refuse to withdraw the charge of murder from the jury at the close of the evidence: to do otherwise he would have to be satisfied that the evidence, both medical and factual, was such that no reasonable jury, properly directed, could conclude that the defendant had failed to prove, on a balance of probabilities, the diminished responsibility defence. (2) Although the medical evidence in favour of diminished responsibility was unchallenged, there was ample factual evidence on which the jury could conclude that it was not satisfied, on a balance of probabilities, that the defence was made out. | 2009-07-29 | 2009 cases, Brief summary, Diminished responsibility cases, ICLR summary, Judgment available on Bailii, Transcript |
| Scottish Ministers v MHTS, re MM [2009] CSIH 66 — (1) Tribunal decision set aside for want of adequate reasons. (2) Discussion on interpretation of s193 Mental Health (Care and Treatment) (Scotland) Act 2003, the convoluted Tribunal discharge procedure and criteria which differ from the admission criteria. | 2009-07-29 | 2009 cases, Brief summary, Judgment available on Bailii, Scottish cases, Transcript |
| R v G; R v J [2009] UKHL 13 — Detailed explanation of elements of, and defences to, s57 and s58 Terrorism Act 2000. It was not a "reasonable excuse" for G to possess terrorist material to wind up prison guards; he was responsible for his actions (applying M'Naghten's case [1843] UKHL J16) and his schizophrenia could not make reasonable what was unreasonable. | 2009-07-29 | 2009 cases, Brief summary, ICLR summary, Judgment available on Bailii, Other criminal law cases, Transcript |
| R (N) v SSH; R (E) v Nottinghamshire Healthcare NHS Trust [2009] EWCA Civ 795 — The right or freedom to smoke does not engage Article 8(1); Article 14 could not therefore be relied upon either. In any event, the SSH's smoke-free regulations and the Trust's smoke-free policy would be justified under Article 8(2), and the different treatment under the regulations for mental health units compared with prisons, care homes and hospices would be justified under Article 14. | 2009-07-26 | 2009 cases, Brief summary, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript |
| Re Brammall: W Primary Care Trust v TB [2009] EWCOP 1737 — {{Case
|Date=2009/07/17 |NCN=[2009] EWCOP 1737M |Other citations=[2009] EWHC 1737 (COP)B, [2009] EWHC 1737 (Fam)B, (2009) 110 BMLR 45, [2010] 1 WLR 2662B, [2010] 1 FLR 682B, [2011] PTSR 135, [2009] Fam Law 1032, [2010] WLR 2662, (2009) 12 CCL Rep 488 |Court=Court of Protection |Judges=Roderic Wood |Parties=W Primary Care Trust, TB, V, S Metropolitan Borough Council, C & W Partnership NHS Foundation Trust, W Metropolitan Borough Council |Sentence=DOLS and Case E |Summary=TB was eligible to be deprived of her liberty under the Mental Capacity Act 2005 (either under DOLS provisions or s16 court order): she might have been ineligible under Case E, but she was not a "mental health patient" because her care home did not fall within the definition of a hospital. |Detail===Further notes== TB was initially subject to an urgent authorisation at a care home. The eligibility assessor for the standard authorisation questioned whether she was ineligible, seeing as she could alternatively have been detained under the MHA and objected to being a mental health patient (Case E). The subsequent deprivation of liberty was authorised by interim court declarations. She potentially came within Case E of the schedule (being "within the scope of the MHA but not subject to any of the mental health regimes"). She would therefore be ineligible if she would be a "mental health patient" under the standard authorisation and "objects to being a mental health patient or to being given some or all of the relevant treatment". Having regard to all the circumstances, including her behaviour, expressed wishes and feelings, views, beliefs and values, it was clear that she did object. The question then was whether she was a "mental health patient". Para 37 of the judgment goes through the various definitions: "mental health patient", para 16 [MCA 2005 sch 1A]]; "hospital" and "registered establishment", s34(4) MHA 1983 applied by para 17 sch 1A MCA 2005; "hospital", s145 MHA 1983 also applied by para 17 sch 1A MCA 2005; "health service hospital", s275 National Health Service Act 2006. In light of the statutory definitions, the care home was not a hospital. Therefore TB did not meet the definition of "mental health patient". This meant that she was not ineligible for a s16 court order or the DOLS standard authorisation. If she had been ineligible it was agreed that the MHA was an inappropriate alternative: the care home did not take MHA detained patients, and the treatment TB required were not available in mainstream psychiatric services. The case was adjourned with directions, including for a neuropsychiatric report as there was some doubt as to whether the care home was suitable in the long term. Unfortunately, in the meantime, TB hanged herself. | 2009-07-23 | 2009 cases, Cases, Deprivation of liberty, Judgment available on Bailii, Pages using DynamicPageList3 parser function |
| MJ (Angola) v SSHD [2009] EWCA Civ 741 — The SSJ should be served with the appeal proceedings as the court would be assisted by information from him as to the policy and objects as he sees them of s42 MHA (discharge power) in the context of a deportation case. | 2009-07-23 | 2009 cases, Brief summary, Judgment available on Bailii, Repatriation cases, Transcript |
| R (Faulkner) v SSJ [2009] EWHC 1507 (Admin) — 13 months after referral, the claimant was released by the Parole Board and subsequently absconded. (1) The question of whether to dismiss the claim purely on the grounds that the claimant was a fugitive was left open. (2) The Article 5(4) claim was inconsistent with R (James) v SSJ [2009] UKHL 22: there was no Article 5(4) breach as the system had not broken down entirely (by the PB being denied the information that it needed for such a long period as to make continued detention arbitrary). (3) If that analysis is wrong, there still was no breach as, looking at the totality of the matter, there had been a review within a reasonable period. (4) Even if there had been a breach, it could not be shown that the claimant would have been released earlier. (5) Damages, if appropriate, would have been in the region of £1,000-£2,000, or perhaps £4,000; but, seeing as he had absconded, no damages would have been awarded. [Caution.] | 2009-07-20 | 2009 cases, Brief summary, Judgment available on Bailii, Prison law cases, Transcript |
| R v Erskine; R v Williams [2009] EWCA Crim 1425 — The appellants argued that, although they had not advanced the defence at trial, their convictions for murder should be quashed and substituted with diminished responsibility manslaughter. (1) The question in each case was whether, in examining the mental state at the time of the killing in accordance with s2 Homicide Act 1957, evidence which was not adduced at trial should be received under s23 Criminal Appeal Act 1968. (2) The question was a simple one and citation of numerous, merely illustrative, authorities was unhelpful. (3) In Erskine there was overwhelming contemporaneous evidence for diminished responsibility, and that his decision not to advance the defence was irremediably flawed because of his illness: appeal allowed and restricted hospital order imposed. (4) In Williams, the decision not to advance the defence was tactical, and the subsequent medical evidence unconvincing: appeal dismissed. | 2009-07-20 | 2009 cases, Brief summary, Diminished responsibility cases, Judgment available on Bailii, Transcript |
| R (P) v Barking Youth Court [2002] EWHC 734 (Admin) — The Youth Court, in considering fitness to plead, had wrongly adopted the procedure laid down for the Crown Court; s11(1) Powers of Criminal Courts (Sentencing) Act 2000 and s37(3) Mental Health Act 1983 provide a complete statutory framework for the determination by the Magistrates' Court, itself a creature of statute, of all the issues that arise in cases of defendants who are or may be mentally ill or suffering from severe mental impairment in the context of offences which are triable summarily only; the procedure is first to determine whether P did the acts alleged against him, and if so, then to consider, in the light of such reports as they may think necessary, whether the case is one for an order under s37(3)); for these purposes a youth court is a magistrates' court. | 2009-07-10 | 2009 cases, Brief summary, Judgment available on Bailii, Other criminal law cases, Transcript |
| R (P) v SSJ [2009] EWCA Civ 701 — The refusal of the SSJ to hold an inquiry into P's detention in YOI Feltham was lawful: (1) Article 2 is only engaged where there is a "real and immediate" risk to life; the risk from P's self harming, while real, was not immediate. (2) There was no arguable breach of Article 3 in the delay in transfer to hospital. Had there been an arguable Article 3 breach: in general, an inquiry would not have been mandatory; in this particular case, it would not have been necessary as the relevant facts were known. | 2009-07-09 | 2009 cases, Brief summary, ICLR summary, Inquest cases, Judgment available on Bailii, Transcript |
| R v Holderness [2009] EWCA Crim 1326 — The appellant argued that, due to a mental illness which she had previously concealed, she ought to have been convicted of diminished responsibility manslaughter rather than murder. This argument was rejected as (1) her appeal depended on her credibility, which had been damaged by her series of lies; (2) her excuse for concealment even up to trial - that she hoped to be let go by appearing well - was not credible; (3) she had ample opportunity to observe other patients' illnesses; (4) it was not probable that she could have concealed the delusions from the psychiatrist who saw her on the day of arrest. No jury might reasonably have found, on the balance of probabilities, that the s2 Homicide Act 1957 criteria were met. Appeal dismissed. | 2009-07-09 | 2009 cases, Brief summary, Diminished responsibility cases, Judgment available on Bailii, Transcript |
| R (Betteridge) v Parole Board [2009] EWHC 1638 (Admin) — (1) Article 5(4) requires a speedy hearing to determine the lawfulness of detention, independently of any consideration of arbitrariness under Article 5(1). (2) The delay in listing the claimant's Parole Board hearing, due to a lack of panel members, breached his Article 5(4) right to a speedy hearing; however, as there had been no chance of release, there was no claim in damages. (3) The steps being taken to fix the systemic failures, and the ongoing problems, mean that further Article 5(4) delay claims are not appropriate unless in very special circumstances. | 2009-07-07 | 2009 cases, Detailed summary, Judgment available on Bailii, Prison law cases, Transcript |
| R (Farah) v HM Coroner for the Southampton and New Forest District of Hampshire [2009] EWHC 1605 (Admin) — (a) A coroner sitting without a jury is entitled to give a verdict and a judgment dealing with the stipulated issues which are (i) who the deceased was; (ii) how, when, by what means and in what circumstances and where the deceased came by is death; and (iii) the particulars for the time being required by the Registration Act to be registered concerning the death; (b) A coroner is entitled to give a judgment on matters which arise during the inquest and which are relevant to the determination of the stipulated issues; (c) The Court has jurisdiction which should be sparingly exercised to declare comments made by a coroner as being unlawful. Such a declaration may be made if the comments (i) do not relate to any of the stipulated issues in any way; (ii) are matters of opinion; and (iii) are sufficiently unfairly critical and offensive of any party; (d) Declarations should be made that comments made by the defendant coroner in his judgment in respect of ..→ | 2009-07-05 | 2009 cases, Brief summary, Inquest cases, Judgment available on Bailii, Transcript |
| R (Allen) v HM Coroner for Inner North London [2009] EWCA Civ 623 — An inquest into the death of a patient who was detained in a hospital under s3 had to satisfy the enhanced requirements of Article 2 | 2009-07-05 | 2009 cases, Detailed summary, ICLR summary, Inquest cases, Judgment available on Bailii, Transcript |
| Gray v Thames Trains Ltd [2009] UKHL 33 — The principle of ex turpi causa prevented the claimant from recovering for damage which was the consequence of his committing the offence of manslaughter. | 2009-06-21 | 2009 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript |
| R (Blouet) v Bath and Wansdyke Magistrates Court [2009] EWHC 759 (Admin) — Fitness to plead - guidance on procedure to be followed by magistrates' court. | 2009-06-15 | 2009 cases, Judgment available on Bailii, No summary, Transcript, Unfitness and insanity cases |
| Roach v Home Office [2009] EWHC 312 (QB) — The costs of attending an inquest can in principle be recovered by way of costs in subsequent civil proceedings; the fact that the inquest work was covered by a public funding certificate had no bearing on the recoverability of the costs. | 2009-06-15 | 2009 cases, Brief summary, Inquest cases, Judgment available on Bailii, Transcript |
| Scottish Ministers v MHTS, re NG and PF [2009] CSIH 33 — The Mental Health Tribunal for Scotland has no power to vary the conditions of a patient who had been conditionally discharged, as the power to set conditions only arises at the time of discharge. | 2009-06-14 | 2009 cases, Brief summary, Judgment available on Bailii, Powers, Scottish cases, Transcript |
| R (Mehmet) v SSJ [2009] EWHC 1202 (Admin) — The failure, without good cause, to provide to the Parole Board for nearly a year a report on how the Claimant’s performance on the ABLB course impacts on the assessment of risk in his case (SARN report) was a breach of the Secretary of State’s public law obligations and accordingly unlawful. | 2009-06-03 | 2009 cases, Brief summary, Judgment available on Bailii, Prison law cases, Transcript |
| Re OT [2009] EWHC 633 (Fam) — OT, a nine-month-old baby, required continuous ventilation to live, and sometimes required further intensive medical treatment; the trust wanted to discontinue ventilation and treatment on the basis of the distressing and futile nature of the treatment; the parents wanted all steps to be taken to sustain life. (1) Although the application itself was made in an emergency as a result of a sudden deterioration in the child's condition, the parents had a fair opportunity to prepare their case both before and during the hearing; there was therefore no flaw in the process breaching Convention rights. (2) The provision or withdrawal of treatment for a child without parental consent, save in exceptional cases, is unlawful without a court declaration.* (3) Declarations were made permitting the clinicians to treat OT according to their clinical discretion (including not escalating treatment) and to cease ventilation immediately. | 2009-05-21 | 2009 cases, Best interests, Brief summary, Judgment available on MHLO, Judgment missing from Bailii, Transcript |
| Re OT (A Child) [2009] EWCA Civ 409 — The judge's refusal of the parents' adjournment application, and the decision to proceed with a determination of best interests of their child, was not appealable. | 2009-05-18 | 2009 cases, Best interests, Brief summary, Judgment available on Bailii, Transcript |
| R (Smith) v Secretary of State for Defence [2009] EWCA Civ 441 — (1) A British soldier who is on military service in Iraq is subject to the jurisdiction of the UK within the meaning of Article 1 of the Convention, so as to benefit from the rights guaranteed by the HRA while operating in Iraq, and not only when he is on a British military base or in a British hospital. (2) The inquest into the claimant's death must confirm with Article 2 standards in the scope of the investigation and nature of the verdict. | 2009-05-18 | 2009 cases, Brief summary, Inquest cases, Judgment available on Bailii, Transcript |
| R v Hughes [2009] EWCA Crim 841 — The court's power to entertain an appeal against sentence is not, as a matter purely of jurisdiction, removed by the fact that there has been an earlier reference of the sentence by the Attorney-General; however, in all but the wholly exceptional case, the applications for extension of time and for leave to appeal would be refused. | 2009-05-15 | 2009 cases, Brief summary, Judgment available on Bailii, Life sentence cases, Transcript |
| R (James) v SSJ [2009] UKHL 22 — (1) Following the introduction of IPP sentences, the Secretary of State was in breach of his public law duty to make reasonable provision to enable IPP prisoners (if necessary by completing treatment courses) to demonstrate to the Parole Board their safety for release. The appropriate remedy was declaratory relief condemning the Secretary of State's failures and indicating that he is obliged to do more. The systemic failure has ended (following amendments including making the IPP sentence generally available only when the notional minimum term is at least 2 years) so no further relief is appropriate. (2) In relation to post-tariff detention, the systemic failure did not: (a) make the detention unlawful (detention remains lawful under statute until Parole Board release); (b) breach Article 5(1) (causal link with objective of detention remained until Parole Board decision); or (c) breach Article 5(4) (which is concerned with procedure not substance) although cases with prior ..→ | 2009-05-06 | 2009 cases, Brief summary, ICLR summary, Judgment available on Bailii, Prison law cases, Transcript |
| Y (Sri Lanka) v SSHD [2009] EWCA Civ 362 — The appellants, who had been tortured as suspected terrorists or terrorist sympathisers before travelling from Sri Lanka to the UK, successfully resisted deportation on Article 3 grounds by claiming that they would commit suicide if returned (even though there was no objective foundation for any fear of ill-treatment). | 2009-05-04 | 2009 cases, Brief summary, Judgment available on Bailii, Repatriation cases, Transcript |
| Eastern and Coastal Kent PCT v Grey (2009) UKEAT 0454/08 — The Employment Tribunal erred as it ought to have considered (but did not consider properly) the requirements of section 4A(3)(b) of the Disability Discrimination Act 1995 which means that an employer is exempt from the duty to make adjustments if each of four matters can be satisfied and they are that the employer: (a) does not know that the disabled person has a disability; (b) does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled; (c) could not reasonably be expected to know that the disabled person had a disability; and (d) could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled. | 2009-05-02 | 2009 cases, Brief summary, Disability discrimination, Judgment available on Bailii, Transcript |
| M v Murray (Mental Health Officer) [2009] ScotSC 8 — The appellant patient argued that the mental health officer's application to the Mental Health Tribunal for Scotland was misconceived because the second medical report which accompanied the application did not meet the requirements of the Mental Health (Care and Treatment) (Scotland) Act 2003; taken as a whole and in the circumstances (that the application is made in the interests of the patient and the Tribunal also hear oral evidence) the report did meet the requirements. | 2009-04-26 | 2009 cases, Brief summary, Judgment available on Bailii, Scottish cases, Transcript |
| R (Lewis) v HM Coroner for the Mid and North Division of the County of Shropshire [2009] EWHC 661 (Admin) — Coroners' inquests - deaths in custody - Article 2 | 2009-04-26 | 2009 cases, Inquest cases, Judgment available on Bailii, No summary, Transcript |
| R (Scott) v London Borough of Hackney [2009] EWCA Civ 217 — The fact that a judicial review claimant is legally aided and his solicitor would therefore benefit from an inter partes costs order is not relevant to the decision as to whether to make a costs order. | 2009-04-12 | 2009 cases, Brief summary, Judgment available on Bailii, Miscellaneous cases, Transcript |
| Re BS [2009] NIFam 5 — A medical examination of BS in the context of an application for a Controller to be appointed in respect of her affairs would not breach Article 8 and should take place. | 2009-04-12 | 2009 cases, Brief summary, Judgment available on Bailii, Northern Irish cases, Other capacity cases, Transcript |
| Magowan, Re Judicial Review [2009] NIQB 6 — Unsuccessful judicial review of failure of social services to make arrangements which would have allowed discharge from hospital. | 2009-04-12 | 2009 cases, Community care, Judgment available on Bailii, No summary, Northern Irish cases, Transcript |
| Jain v Trent Strategic Health Authority [2009] UKHL 4 — Unsuccessful negligence claim relating to the cancellation of nursing home registration. | 2009-04-12 | 2009 cases, Community care, Judgment available on Bailii, No summary, Transcript |
| Kaprykowski v Poland 23052/05 [2009] ECHR 198 — Detention without adequate medical treatment and assistance constituted inhuman and degrading treatment, amounting to a violation of Article 3; compensation of €3000 awarded. | 2009-04-10 | 2009 cases, Brief summary, ECHR, Judgment available on Bailii, Transcript |
| R v Wood (No 2) [2009] EWCA Crim 651 — The fact that a defendant was convicted of manslaughter on the grounds of diminished responsibility did not preclude a sentence of imprisonment for life. In assessing the seriousness of such an offence with a view to fixing a minimum term, the court could take into account the guidance in Sch 21 of the Criminal Justice Act 2003, subject to the specific element of reduced culpability consequent on diminished responsibility. [ICLR] | 2009-04-05 | 2009 cases, Detailed summary, Diminished responsibility cases, ICLR summary, Judgment available on Bailii, Transcript |
| R v Tabbakh [2009] EWCA Crim 464 — The judge was entitled to rule that it was open to the jury to draw adverse inferences from the fact that the appellant had not given evidence, and that the exception in s35(1)(b) Criminal Justice and Public Order Act 1994 (that it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence) did not apply to him even though he suffered from a mental health condition. | 2009-03-26 | 2009 cases, Brief summary, Judgment available on Bailii, Other criminal law cases, Transcript |
| R v Stewart [2009] EWCA Crim 593 — Guidance on directions to the jury where the defence case was diminished responsibility based on alcohol dependency syndrome. | 2009-03-26 | 2009 cases, Brief summary, Diminished responsibility cases, Judgment available on Bailii, Transcript |
| R (EM) v SSWP [2009] EWHC 454 (Admin) —
Welfare benefits and transferred prisoners The Regulations which deprive of welfare benefits transferred prisoners (s47/49 and s45A patients until they would be entitled to release if in prison) are lawful; this is because there is enough of a relevant difference between them and civil/s37 patients to justify different treatment (i.e. they have been sentenced to a term of imprisonment to which they remain subject); in general, this applies all determinate and indeterminate sentence prisoners, including post-tariff lifers, technical lifers being the only exception because they had not been considered when the Regulations were drawn up and there is not enough of a relevant difference present. | 2009-03-13 | 2009 cases, Cases, Judgment available on Bailii, Judgment available on MHLO, Pages using DynamicPageList3 parser function, Transcript, Welfare benefits cases |
| Re J (Enduring Power of Attorney) [2009] EWHC 436 (Ch) — An Enduring Power of Attorney appointing successive or alternative attorneys is valid if it is stated for each set of attorneys, in the event that they exercise the power, whether they must exercise it jointly or jointly and severally. | 2009-03-12 | 2009 cases, Brief summary, EPA cases - substitute atorneys, Judgment available on Bailii, Transcript |
| R (Wright) v SSH [2009] UKHL 3 — Section 82(4)(b) of the Care Standards Act 2000, which provides for the provisional inclusion in the POVA list of a care worker (thus depriving him of employment) immediately after concerns are raised but before any judicial hearing, is incompatible with Articles 6 and 8. | 2009-02-22 | 2009 cases, Brief summary, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript |
| R (Purdy) v DPP [2009] EWCA Civ 92 — The absence of a crime-specific policy relating to assisted suicide (identifying the facts and circumstances where it will not be in the public interest to prosecute) does not make the operation and effect of section 2(1) of the Suicide Act 1961 Act unlawful nor mean that it is not in accordance with law for the purposes of Article 8(2). [Overturned on appeal.] | 2009-02-22 | 2009 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Other criminal law cases, Transcript |
| Scottish Ministers v MHTS, re JK [2009] CSIH 9 — The Mental Health Tribunal for Scotland, in terminating a restiction order of a detained patient, had erred in law: (1) The threshold requirements in section 193(2) (that the patient has a mental disorder and that it is necessary for the patient to be detained in order to protect any other person from serious harm) must be considered and found wanting before considering the rest of the section including, under s193(5), whether to terminate the restriction order; (2) the criteria in s193(5)(b) (that the serious harm test is satisfied and that the restriction order is a continuing necessity) are disjunctive and must be separately considered. Obiter, there was a failure to deal with large parts of the evidence, in particular the RMO's evidence that the serious risk test was met. | 2009-02-20 | 2009 cases, Brief summary, Judgment available on Bailii, Reasons, Scottish cases, Transcript |
| M v East London NHS Foundation Trust CO/1065/2009 — The nearest relative's statement to the AMHP that he disagreed with detention under s3 was sufficient to amount to the notification of an objection under s11; it was unaffected, in the absence of any clear evidence of a change of mind, by the failure to state an objection in a subsequent conversation immediately prior to the making of the application. | 2009-02-15 | 2009 cases, Brief summary, Consulting NR, Judgment available on MHLO, Neutral citation unknown or not applicable, Transcript |
| Re P (Statutory Will) [2009] EWCOP 163 —
Best interests and statutory wills The Court of Protection is not bound by the substituted judgment approach from the previous legislation, including the Mental Health Acts 1959 and 1983, but must apply the Mental Capacity Act 2005 best interests approach (the general philosophy of which is discussed). Summary from Court of Protection 2009 ReportIn the context of a statutory will application, Mr Justice Lewison considered the difference between substituted judgment and best interests, and held that the earlier law regarding the making of statutory wills, including the landmark decision of Sir Robert Megarry V-C in Re D(J) [1982] 2 All ER 37, is no longer good law because it applied a substituted judgment test. ICLRThe ICLR have kindly agreed for their WLR (D) case report to be reproduced below. For full details, see their ..→ | 2009-02-11 | 2009 cases, Cases, ICLR summary, Judgment available on Bailii, Pages using DynamicPageList3 parser function, Statutory will cases |
| R (B) v DPP [2009] EWHC 106 (Admin) — The decision to discontinue a prosecution for wounding with intent and witness intimidation, on the basis that the victim's mental illness meant he could not be placed before the jury as a credible witness, was irrational on the facts; s49A Disability Discrimination Act 1995 added nothing to the ordinary position under public law principles; there had been a breach the positive obligation under Article 3 (which includes the duty to provide a legal system for bringing to justice those who commit serious acts of violence against others) and £8000 was awarded in compensation. | 2009-02-02 | 2009 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Other criminal law cases, Transcript |
| Austin v Commissioner of Police of the Metropolis [2009] UKHL 5 — (1) The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, not one of nature or substance; it is highly sensitive to the facts of each case. (2) Where the purpose of the measure is relevant, it must be to enable a balance to be struck between what the restriction seeks to achieve and the interests of the individual; there is room, even in the case of fundamental rights, for a pragmatic approach which takes full account of all the circumstances; however, in general, purpose is relevant, not to whether the Article 5 threshold is crossed, but to justification under 5(1)(a) to (e). (3) Measures of crowd control will fall outside the ambit of Article 5 so long as they are not arbitrary, i.e. they must be resorted to in good faith, they must be proportionate, and they must not be enforced for longer than is reasonably necessary; the confinement by the police of the claimant for seven hours in Oxford Circus in order to avoid physical ..→ | 2009-01-29 | 2009 cases, Deprivation of liberty, Detailed summary, ICLR summary, Judgment available on Bailii, Transcript |
| R (Black) v SSJ [2009] UKHL 1 — The decision on whether to release a determinate sentence prisoner at his parole eligibility date (the half-way point of a long-term Criminal Justice Act 1991 prisoner) did not engage Article 5 as the decision was merely the administrative implementation of the sentence of the court. | 2009-01-28 | 2009 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Prison law cases, Transcript |
| Adorian v Commissioner of Police of the Metropolis [2009] EWCA Civ 18 — Failure to apply for permission under s329(2) Criminal Justice Act 2003 before bringing proceedings did not render the proceedings a nullity, but rather amounted to a procedural irregularity that could be cured by subsequent application at the discretion of the court. | 2009-01-28 | 2009 cases, Detailed summary, ICLR summary, Judgment available on Bailii, Miscellaneous cases, Transcript |
| R (SP) v SSJ [2009] EWHC 13 (Admin) — The requirements of Article 2 concerning an investigation into the treatment of the claimant while she was serving a sentence of detention in a young offender institution. | 2009-01-21 | 2009 cases, ECHR, Judgment available on Bailii, Miscellaneous cases, No summary, Transcript |
| Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4 (AAC) — {{Case
|Date=2009-01-08 |NCN=[2009] UKUT 4 (AAC)M |Other citations=(2010) 11 BMLR 1, [2009] PTSR 1112, 11 BMLR 1, [2009] MHLR 102 |Court=Upper Tribunal (Administrative Appeals Chamber) |Judges=Hickinbottom, Sycamore, Rowland |Parties=MH, Dorset Healthcare NHS Foundation Trust |Sentence=Non-disclosure of third-party information in medical records |Summary=The responsible authority appealed against the Tribunal's interlocutory decision to direct disclosure of medical records, including third-party information, to the patient's solicitor; having agreed it had jurisdiction, the Upper Tribunal made no order on the appeal, as the patient had by that time been placed on a CTO; however, detailed guidance was given as to the proper approach where either the responsible authority resists disclosure of confidential third-party information or the solicitor wishes to disclose such information to his client. Guidance was also given on the status of a decision by a three-judge panel of the Administrative Appeals Chamber. |Detail===Notes== This was the first appeal to be concluded under the Tribunals, Courts and Enforcement Act 2007 by a Three-Judge Panel of the Administrative Appeals Chamber of the Upper Tribunal. | 2009-01-15 | 2009 cases, Cases, Judgment available on Bailii, Non-disclosure, Pages using DynamicPageList3 parser function |
| X, Re Judicial Review [2009] NIQB 2 — Based on the general legislative purpose underlying Article 77(2) Mental Health (NI) Order 1986 and the constitutional principle in favour of liberty, the MHRT in Northern Ireland does not have the power to direct the discharge of an unrestricted patient at a future date where there is a mandatory duty to discharge the patient; a deferred discharge is only lawful for a discretionary discharge | 2009-01-11 | 2009 cases, Brief summary, Judgment available on Bailii, Northern Irish cases, Powers, Transcript |
Article titles
The following 160 pages are in this category.
A
- A Primary Care Trust v P (2009) EW Misc 10 (EWCOP)
- AA v Cheshire and Wirral Partnership NHS Foundation Trust (2009) UKUT 195 (AAC)
- AB v Nugent Care Society (2009) EWCA Civ 827
- Adorian v Commissioner of Police of the Metropolis (2009) EWCA Civ 18
- Anam v SSHD (2009) EWHC 2496 (Admin)
- Austin v Commissioner of Police of the Metropolis (2009) UKHL 5
B
C
D
E
G
J
K
M
R
- R (AB) v SSJ (2009) EWHC 2220 (Admin)
- R (Allen) v HM Coroner for Inner North London (2009) EWCA Civ 623
- R (B) v DPP (2009) EWHC 106 (Admin)
- R (Betteridge) v Parole Board (2009) EWHC 1638 (Admin)
- R (Black) v SSJ (2009) UKHL 1
- R (Blouet) v Bath and Wansdyke Magistrates Court (2009) EWHC 759 (Admin)
- R (Boyejo) v Barnet LBC (2009) EWHC 3261 (Admin)
- R (Cart) v Upper Tribunal (2009) EWHC 3052 (Admin)
- R (Chahboub) v SSHD (2009) EWHC 1989 (Admin)
- R (Corbett) v SSJ (2009) EWHC 2671 (Admin)
- R (Domb) v London Borough of Hammersmith and Fulham (2009) EWCA Civ 941
- R (E) v Governing Body of JFS (No 2) (2009) UKSC 1
- R (EM) v SSWP (2009) EWHC 454 (Admin)
- R (Farah) v HM Coroner for the Southampton and New Forest District of Hampshire (2009) EWHC 1605 (Admin)
- R (Faulkner) v SSJ (2009) EWHC 1507 (Admin)
- R (James) v SSJ (2009) UKHL 22
- R (Johnson) v SSJ (2009) EWHC 3336 (Admin)
- R (Krishnapillai) v SSHD (2008) EWHC 2737 (Admin)
- R (Lewis) v HM Coroner for the Mid and North Division of the County of Shropshire (2009) EWCA Civ 1403
- R (Lewis) v HM Coroner for the Mid and North Division of the County of Shropshire (2009) EWHC 661 (Admin)
- R (Manchester City Council) v St Helens Borough Council (2009) EWCA Civ 1348
- R (McKinnon) v SSHA (2009) EWHC 2021 (Admin)
- R (McKinnon) v SSHA (2009) EWHC 2449 (Admin)
- R (Mehmet) v SSJ (2009) EWHC 1202 (Admin)
- R (Miller) v Independent Assessor (2009) EWCA Civ 609
- R (Munday) v SSJ (2009) EWHC 3638 (Admin)
- R (N) v SSH; R (E) v Nottinghamshire Healthcare NHS Trust (2009) EWCA Civ 795
- R (P) v Barking Youth Court (2002) EWHC 734 (Admin)
- R (P) v HM Coroner for the District of Avon (2009) EWCA Civ 1367
- R (P) v SSJ (2009) EWCA Civ 701
- R (Pennington) v Parole Board (2009) EWHC 2296 (Admin)
- R (PP) v SSJ (2009) EWHC 2464 (Admin)
- R (Purdy) v DPP (2009) EWCA Civ 92
- R (Purdy) v DPP (2009) UKHL 45
- R (Scott) v London Borough of Hackney (2009) EWCA Civ 217
- R (Smith) v Secretary of State for Defence (2009) EWCA Civ 441
- R (Southall) v Dudley PCT (2009) EWHC 1780 (Admin)
- R (SP) v SSJ (2009) EWHC 13 (Admin)
- R (Stojak) v Sheffield City Council (2009) EWHC 3412 (Admin)
- R (TF and Thompson) v SSHD (2009) EWCA Civ 792
- R (Turner) v Southampton City Council (2009) EWCA Civ 1290
- R (Woods) v Rochdale MBC (2009) EWHC 323 (Admin)
- R (Wright) v SSH (2009) UKHL 3
- R (X) v SSJ (2009) EWHC 2465 (Admin)
- R v C (2009) UKHL 42
- R v Charisma (2009) EWCA Crim 2345
- R v Erskine; R v Williams (2009) EWCA Crim 1425
- R v Evans (2009) EWCA Crim 2243
- R v G; R v J (2009) UKHL 13
- R v Ghulam (2009) EWCA Crim 2285
- R v Holderness (2009) EWCA Crim 1326
- R v Hughes (2009) EWCA Crim 841
- R v Khan (2009) EWCA Crim 1569
- R v Pedley, Martin and Hamadi (2009) EWCA Crim 840
- R v Stewart (2009) EWCA Crim 593
- R v Tabbakh (2009) EWCA Crim 464
- R v Wood (No 2) (2009) EWCA Crim 651
- Rabone v Pennine Care NHS Trust (2009) EWHC 1827 (QB)
- Re Allen (2009) COP 21/7/09
- Re Azancot (2009) COP 27/5/09
- Re Bainbridge (2009) COP 10/3/09
- Re Baldwin (2009) COP 14/5/09
- Re Bax (2009) COP 22/10/09
- Re Brammall: W Primary Care Trust v TB (2009) EWCOP 1737
- Re Bratt (2009) COP 14/4/09
- Re Bridge (2009) COP 25/9/09
- Re BS (2009) NIFam 5
- Re Bullock (2009) COP 15/12/09
- Re Clarke (2009) COP 18/11/09
- Re Ditcham (2009) COP 12/5/09
- Re DU; A NHS Trust v DU (2009) EWHC 3504 (Fam)
- Re Dunningham (2009) COP 15/9/09
- Re Ellis (2009) COP 17/11/09
- Re F (2009) EWHC B30 (Fam)
- Re Furlow (2009) COP 1/10/09
- Re Harries (2009) COP 22/6/09 11613871
- Re Helmsley (2009) COP 30/11/09
- Re HM; PM v KH (2009) EWHC 2685 (Fam)
- Re Hollins (2009) COP 10/6/09
- Re J (Enduring Power of Attorney) (2009) EWHC 436 (Ch)
- Re JG (Estate Planning for Adults who have lost Capacity) (2009) ScotSC 77
- Re Ker (2009) COP 21/9/09
- Re King (2009) COP 14/7/09
- Re Kittle (2009) COP 1/12/09
- Re KM; NCC v KM (2009) COP 1145479102
- Re M; ITW v Z (2009) EWHC 2525 (Fam)
- Re Meaker (2009) COP 16/6/09
- Re MP; LBH v GP (2009) FD08P01058
- Re Murdoch (2009) COP 30/10/09
- Re OT (2009) EWHC 633 (Fam)
- Re OT (A Child) (2009) EWCA Civ 409
- Re P (2009) COP 9/6/09
- Re P (Statutory Will) (2009) EWCOP 163
- Re Portues (2009) COP 6/1/09
- Re Rayner (2009) COP 9/6/09
- Re RB (A Child) (2009) EWHC 3269 (Fam)
- Re Reading (2009) COP 25/6/09
- Re Robinson (2009) COP 18/9/09
- Re Sawyer (2009) COP 31/3/09
- Re Shepherd (2009) COP 13/3/09
- Re Smith (2009) COP 7/12/09
- Re Sporne (2009) COP 13/10/09
- Re Sykes (2009) 9/7/09
- Re Vallet (2009) COP 27/1/09
- Re Viveash (2009) COP 21/9/09
- Roach v Home Office (2009) EWHC 312 (QB)
S
- Salford City Council v BJ (2009) EWHC 3310 (Fam)
- SCA Packaging Ltd v Boyle (2009) UKHL 37
- Scottish Ministers v MHTS, re JK (2009) CSIH 9
- Scottish Ministers v MHTS, re MM (2009) CSIH 66
- Scottish Ministers v MHTS, re NG and PF (2009) CSIH 33
- Seal v UK 50330/07 (2009) ECHR 806
- SH v NB (Marriage: Consent) (2009) EWHC 3274 (Fam)
- Stockton On Tees Borough Council v Aylott (2009) UKEAT 0401/08/1103
- Stojanovski v Former Yugoslav Republic of Macedonia 1431/03 (2009) ECHR 1615
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